Wednesday, February 14, 2007

Chaining the Muse

We're not fond of court rules that dictate the structure of briefs.

We understand why courts adopt these rules. It's partially for self-preservation; if courts didn't impose page limits on briefs, for example, many litigants would inflict tomes on courts. And some rules make it easier for the court to find certain essential information, such as the requirement that federal appellate briefs contain a jurisdictional statement.

But we suspect that many other rules are desperate efforts to improve the quality of legal writing, and we don't think those rules can work. To the contrary, we think courts will still receive plenty of bad briefs, and the rules will reduce the quality of some briefs that might otherwise be truly exceptional.

Many court rules dictating the form of briefs simply try to force incompetent counsel to include in their submission the topics that concern the court. Some court rules require, for example, that a brief begin with a "summary of argument." A good lawyer, however, is likely to have a few sexy explanatory sentences that would be a better way to start the brief than with a pure summary of the legal argument. Some court rules require a movant to isolate the controlling authority for the relief sought. That's a tough row to hoe for a litigant trying to make new law. Some court rules require separate sections titled "statement of the case" and "statement of the facts," even though a gifted writer could almost surely merge the two with grace. And so on.

We doubt that court rules can make bad lawyers good. A disorganized writer is just as capable of producing a rambling, formless screed within these rules as without. Bounded by the rules, the screed will be broken up by subheadings; unbounded, it may not be. Either way, the screed is the screed, the writing is poor, and the court will suffer.

Worse than the rules' inability to improve bad writing is their pernicious effect on good writing. An able writer knows that the best approach to a complex written communication will vary with the nature of the communication. Not all histories are written in strict chronological order. Not all novels follow the same organizational structure. Not all poetry rhymes. And not all briefs are at their most persuasive, or even their most comprehensible, when chopped up and arranged in precisely the way the various rules mandate.

Judges who are good writers know this. Judges Easterbrook and Posner, both of the Seventh Circuit, are among those who are legendary for the clarity and punch of their opinions. Whatever one thinks of the merits of any given decision, it is impossible to come away from a Posner or Easterbrook opinion without deep admiration for the brilliance of the writing. And both Judge Easterbrook and Judge Posner routinely violate, often flagrantly, the opinion-writing rules laid down at judges' schools about how to structure decisions. Recommendations to judges about how to structure their opinions can help the uncertain writer accomplish his or her goals; fine writers can often accomplish them much better by abandoning the recommendations.

Why, then, are lawyers' briefs chained to a Procrustean structure? We understand the pervasive despair of courts that find themselves awash in badly-written briefs and cling to structural rules as a life-preserver. But their hope is misplaced for two reasons.

First, rule-imposed structures will not make bad writing good. Period.

Second, rule-imposed structures can make good writing worse. A skillful brief-writer left unfettered might well produce a better brief than the same writer bound into a rigid structure. Procrustes' bed did not fit all travelers, and Procrustes' rack and sword badly hurt some of them.

We know that courts will never eliminate the constraints they place on briefs, and perhaps that refusal makes good sense. But courts should recognize that those rules constrain excellence as surely as they constrain mediocrity, and we must all live with the results.

About

This blog contains the personal views of the Blogging Team identified below (and of any authors of guest posts) concerning various topics that arise in the defense of pharmaceutical and medical device product liability litigation. Please read the DISCLAIMER about the nature of this blog, and understand that you are accepting its terms, before reading any of the posts here.

Blogging Team

James M. Beck is Counsel resident in the Philadelphia office of Reed Smith. He is the author of, among other things, Drug and Medical Device Product Liability Handbook (2004) (with Anthony Vale). he wrote the seminal law review article on off-label use cited by the Supreme Court in Buckman v. Plaintiffs Legal Committee. He has written more amicus briefs for the Product Liability Advisory Council than anyone else in the history of the organization, and in 2011 won PLAC's highest honor, the John P. Raleigh award. He can be reached at jmbeck@reedsmith.com.

Stephen McConnell has authored articles and chapters on product liability (though nothing as snappy or authoritative as Beck's book) and has tried drug and device cases that managed to evade the pretrial gauntlet. He is a partner in the Philadelphia office of Reed Smith and can be reached at smcconnell@reedsmith.com.

Michelle Hart Yeary is a seasoned products liability litigator who focuses on attempting to bring order to the chaos that is mass torts, concentrating on the practicalities and realities of defending coordinated and multidistrict litigation. She is counsel in the Princeton office of Dechert LLP and can be reached at michelle.yeary@dechert.com.

John J. Sullivan is a products liability and commercial litigator, having authored articles on mass torts and securities litigation and presented on trial advocacy. He is experienced in mass tort litigation, with a particular emphasis on scientific and regulatory issues, as well as having experience in complex commercial, securities class action and corporate governance litigation. He is a partner in the downtown Manhattan and New Jersey offices of Cozen O'Connor and can be reached at jsullivan@cozen.com.

Eric L. Alexander is a partner in Reed Smith’s Washington office. He has spent almost his entire career representing drug and device companies in product liability litigation from discovery through motions, trials, and appeals, usually on the right side of the v. He is particularly interested in medical and proximate cause and the intersection of actual regulatory requirements and the conduct that plaintiffs allege was bad, which covers quite a bit. He can be reached at ealexander@reedsmith.com.

Steven J. Boranian is a partner in Reed Smith’s San Francisco office, where he focuses his practice on representing drug and medical device companies in product liability and other kinds of litigation. He has handled drug and device matters from pre-litigation demands to appeals and all points in between, with particular interests in “mass” proceedings and class actions, to the extent the latter should ever be allowed in the drug and medical device context. He can be reached at sboranian@reedsmith.com.

Rachel B. Weil is counsel in Reed Smith’s Philadelphia office. Except for a brief, misguided trip to the “dark side,” Rachel has spent her whole career defending drug and device manufacturers in product liability litigation and in government actions arising from such litigation. While she laments the single-plaintiff drug cases of her youth, she loves nothing better than a good mass tort. She can be reached at rweil@reedsmith.com
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